All the case law you ever needed on Regulation 261

In this article the author brings together relevant passages from the case law on Regulation 261/2004 on Denied Boarding, Cancellations and Long Delays of Flights.

1. Extraordinary circumstances

(a) Unexpected flight safety shortcomings

Wallentin Hermann v Alitalia (C-549/07) (December 2008)

Technical faults would not constitute extraordinary circumstances unless the “problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its control”.

Huzar v Jet2.com [2014] EWCA Civ 791

“Difficult technical problems arise as a matter of course in the ordinary operation of the carrier’s activity. Some may be foreseeable and some not but all are, in my view, properly described as inherent in the normal exercise of the carrier’s activity. They have their nature and origin in that activity; they are part of the wear and tear.”

Even in the event of a flight cancellation on account of unforeseen technical problems, air carriers are required to compensate passengers.

However, certain technical problems resulting, in particular, from hidden manufacturing defects affecting the safety of flights or acts of sabotage or terrorism may exempt air carriers from their obligation to pay compensation.

(b) Bird strike

Pešková and Peška v Travel Service AS (C-315/15)(4 May 2017)

A collision between an aircraft and a bird is classified under the concept of “extraordinary circumstances” within the meaning of Article 5(3).

Cancellation or delay of a flight is not due to extraordinary circumstances when it is the result of the use by the carrier of an expert of its choice to carry out fresh safety checks necessitated by a collision with a bird after those checks have already been carried out by an authorised expert.

The “reasonable measures” which a carrier must take to reduce or prevent the risks of collision with a bird and thus be released from its obligation to compensate passengers include control measures preventing the presence of such birds provided that, in particular at the technical and administrative levels, such measures can actually be taken by that carrier, do not require it to make intolerable sacrifices in the light of the capacities of its undertaking and that carrier has shown that those measures were actually taken as regards the flight affected.

In the event of a delay to a flight equal to or in excess of three hours in arrival caused not only by extraordinary circumstances, which could not have been avoided by measures appropriate to the situation and which were subject to all reasonable measures by the carrier to avoid the consequences thereof, but also in other circumstances not in that category, the delay caused by the first event must be deducted from the total length of the delay in arrival of the flight concerned in order to assess whether compensation for the delay in arrival of that flight must be paid.

“In view of the foregoing, the answer to the questions is that Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that an air carrier, since it is obliged to implement all reasonable measures to avoid extraordinary circumstances, must reasonably, at the stage of organising the flight, take account of the risk of delay connected to the possible occurrence of such circumstances. It must, consequently, provide for a certain reserve time to allow it, if possible, to operate the flight in its entirety once the extraordinary circumstances have come to an end. However, that provision cannot be interpreted as requiring, as a “reasonable measure”, provision to be made, generally and without distinction, for a minimum reserve time applicable in the same way to all air carriers in all situations when extraordinary circumstances arise. The assessment of the ability of the air carrier to operate the programmed flight in its entirety in the new conditions resulting from the occurrence of those circumstances must be carried out in such a way as to ensure that the length of the required reserve time does not result in the air carrier being led to make intolerable sacrifices in the light of the capacities of its undertaking at the relevant time. Article 6(1) of that regulation is not applicable in the context of such an assessment.”

“Articles 5 to 7 of Regulation No 261/2004 must be interpreted as meaning that passengers whose flights are delayed are entitled to compensation under that regulation where they suffer, on account of such flights, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier. Such a delay does not, however, entitle passengers to compensation if the air carrier can prove that the long delay is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances beyond the actual control of the air carrier.”

“[T]he loss of time inherent in a flight delay, which constitutes an inconvenience within the meaning of Regulation No 261/2004 and cannot be categorised as ‘damage occasioned by delay’ within the meaning of Article 19 of the Montreal Convention, cannot come within the scope of Article 29 of that convention Consequently, the obligation under Regulation No 261/2004 intended to compensate passengers whose flights are subject to a long delay is compatible with Article 29 of the Montreal Convention.”

4. Missed connections

Shenkel v Emirates (C-173/07)(10 July 2008)

“the concept of “flight” within the meaning of Regulation No 261/2004 must be interpreted as consisting essentially in an air transport operation, being as it were a “unit” of such transport, performed by an air carrier which fixes its itinerary.”

Sanghvi v Cathay Pacific Airways [2012] 1 Lloyd’s Rep 46

“Para [37] of Schenkel makes it tolerably clear, to my mind, that article 3 connects the liability of an air carrier to either (a) a flight departing from the territory of a member state where denial of boarding will have taken place on the soil of that member state or (b) the grant of a carrier’s operating licence by a member state when the flight’s destination is a member state. Both (a) and (b) provide a logical territorial basis for the application of the regulation to the denial of boarding by a carrier.”

“It seems to me, therefore, that the judge below was right to say that the regulation is only concerned with the individual flight components of any journey so that the flight to which the claimant says he was denied boarding, CX111, did not depart from the UK but from Hong Kong…”

Folkerts v Air France (C-11/11)(23 February 2013)

“Article 7 of Regulation No 261/2004 must be interpreted as meaning that compensation is payable, on the basis of that article, to a passenger on directly connecting flights who has been delayed at departure for a period below the limits specified in Article 6 of that regulation, but has arrived at his final destination at least three hours later than the scheduled arrival time, given that the compensation in question is not conditional upon there having been a delay at departure and, thus, upon the conditions set out in Article 6 having been met.”

“The opposite approach would constitute an unjustified difference in treatment, inasmuch as it would effectively treat passengers of flights arriving at their final destination three hours or more after the scheduled arrival time differently depending on whether their flights were delayed beyond the scheduled departure time by more than the limits set out in Article 6 of Regulation No 261/2004, even though their inconvenience linked to an irreversible loss of time is identical.”

“[T]he amount of compensation, fixed at EUR 250, 400 and 600 depending on the distance of the flights concerned, may still be reduced by 50% in accordance with Article 7(2)(c) of Regulation No 261/2004, where the delay is – in the case of a flight not falling under subparagraphs (a) or (b) of Article 7(2) – less than four hours.”

Gahan/Buckley v Emirates [2017] EWCA Civ 1530

“Where the carrier provides a passenger with more than one flight to enable him to arrive at his destination, the flights are taken together for the purpose of assessing whether there has been three hours’ or more delay.”

“Regulation 261 applies to flights by non-Community carriers out of EU airspace even if flight 1 or flight 2 lands outside the EU. The necessary starting point here is that there is no requirement in Regulation 261 that they should land in the EU. Regulation 261 takes effect when the carrier is present in the EU and it imposes a contingent liability on the carrier at that point. The liability may never crystallise but if it does do so, it will crystallise outside the jurisdiction.”

“The basis of jurisdiction asserted over non-Community carriers is territorial … The measure uses an activity outside the jurisdiction not to claim jurisdiction but to quantify a sanction imposed within the jurisdiction … Regulation 261 applies to a non-Community carrier because they use EU airports. It is rational for the EU legislature to measure delay by reference to the final destination where there are two or more flights which are directly connecting as that is likely to be the best measure of the inconvenience to the passenger.”

“This Court is bound by its decision in Dawson. In my judgment that case cannot be distinguished simply because it concerned a Community carrier. The reasoning applies equally to non-Community carriers. In the light of Dawson, Article 27 of the Vienna Convention (see paragraph 38(iii) above) does not assist Emirates.”

“This Court in Dawson thus made it clear that the jurisprudence of the CJEU as to the meaning of Regulation 261 is binding on this Court even though it conflicts with the jurisprudence of the Supreme Court and House of Lords. It is correct that the decision in Dawson concerned a Community carrier and not a non- Community carrier but the principle was that a point of international law decided by the CJEU was binding on the national court if it was a necessary step in reaching a conclusion as to the meaning of an EU regulation. This is equally applicable to Community and non-Community carriers and thus Dawson cannot be distinguished.”

“the operating air carrier is required to pay the compensation specified in those provisions in the case where a flight was cancelled and that information was not communicated to the passenger at least two weeks before the scheduled time of departure, including in the case where that air carrier, at least two weeks before that time, communicated that information to the travel agent via whom the contract for carriage had been entered into with the passenger concerned and the passenger had not been informed of that cancellation by that agent within that period.”

“the discharge of obligations by the operating air carrier pursuant to Regulation No 261/2004 is without prejudice to its rights to seek compensation, under the applicable national law, from any person who caused the air carrier to fail to fulfil its obligations, including third parties.”

7. Calculation of distance for compensation purposes

Bossen and others v Brussels Airlines (C-559/16)(7 September 2017)

“Article 7(1) of Regulation (EC) No 261/2004 must be interpreted as meaning that the concept of “distance”, in the case of air routes with connecting flights, relates only to the distance
[2018] TLQ 15

calculated between the point of departure and the final destination on the basis of the “great circle” method, regardless of the distance actually flown.”

8. Jurisdiction

Rehder v Air Baltic (C-204/08)(9 July 2009)

“the second indent of Article 5(1)(b) of Regulation No 44/2001 must be interpreted as meaning that, in the case of air transport of passengers from one Member State to another Member State, carried out on the basis of a contract with only one airline, which is the operating carrier, the court having jurisdiction to deal with a claim for compensation founded on that transport contract and on Regulation No 261/2004 is that, at the applicant’s choice, which has territorial jurisdiction over the place of departure or place of arrival of the aircraft, as those places are agreed in that contract.”

“Where passengers are transported on a journey which consists of two connecting flights, the place of departure of the first leg and the place of arrival of the second leg both constitute the place of performance [under Article 5(1)(b) of Regulation 44/2001], in the case where the claim is directed against the air carrier which operated the first leg on which the delay took place and which was not the contracting air carrier of the passenger.”

“the rules of jurisdiction defined in [Regulation 44/2001] do not apply to a defendant domiciled outside the EU … The international jurisdiction of the court seized must therefore be assessed under the rules applicable in the forum of the court seized. However, such national rules on international jurisdiction cannot make the enforcement of a claim based on Article 7 of Regulation No 261/2004 by a passenger practically impossible or excessively difficult”.

About the Author

Kathryn Ward is a partner with DLA Piper. She defends numerous carriers in passenger, cargo and baggage claims brought against them based on the Montreal Convention 1999, EU Regulation 261/04 and EU Regulation 1107/06.